ATUL MALOO, Jaipur V. ITO, Jaipur

ITA 550/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4883 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI D DHK
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 68; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 550/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI ATUL MALOO S/O SHRI RATAN LAL MALOO A-5, STATIONROAD, BANI PARK, JAIPUR CUKE VS. THE ITO WARD- 3 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ALXPM 5529 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY:SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/12/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06 /12/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-1, JAIPUR DATED 02-03-2016 FOR THE ASSESSME NT YEAR 2007-08 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 14.10 LACS MADE BY AO ON ACCOUNT OF CASH DEPOSITED IN BANK ACCOUNT, TREATING THE SAME AS INC OME FROM UNDISCLOSED SOURCES. APPELLANT PRAYS SAID THAT SAID ADDITION MAY PLEASE BE DELETED. ITA NO. 550/JP/2016 SHRI ATUL MALOO VS. ITO WARD- 3(2), JAIPUR . 2 2. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ADDITION OF RS. 2,92,150/- MADE BY A O ON ACCOUNT OF COMMISSION RECEIVED ON THE GROUND THAT THE SAID COMMISSION IS NOT RELATED TO ACTIVITY OF APPELLANT. APPELLANT PRAYS SAID THAT SAID ADDITION MAY PLEASE BE DELETED 2.1 APROPOS GROUND NO. 1 AND 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 3.3.1 IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE AO HAS PROVIDED SUFFICIENT OPPORTUNITIES T O THE APPELLANT TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS. 14,10,000/- LACS IN ITS BANK ACCOUNT, HOWEVER, NO S ATISFACTORY EXPLANATION WAS SUBMITTED BEFORE AO AND CONSEQUENTL Y, THE AO MADE THE ADDITION OF RS. 14,10,000/- TO THE INCO ME OF THE APPELLANT AS INCOME FROM UNDISCLOSED SOURCES. I T WAS THE CLAIM OF THE APPELLANT THAT THE SAID DEPOSITS WERE MADE OUT OF THE SALE PROCEEDS OF ITS ELECTRONIC BUSINESS, HOWEV ER, NO EVIDENCE WAS SUBMITTED BY THE APPELLANT EITHER BEFO RE THE AO OR BEFORE ME IN SUPPORT OF ITS CONTENTION. IT M AY BE MENTIONED THAT THE PROVISION OF PRESUMPTIVE TAXATIO N U/S 44AF OF THE ACT ALLOW TO TAKE 5% OF THE TOTAL SALE AS THE NET PROFIT OF THE APPELLANT BUT THE PROVISION DO NOT EN DORSE THAT ANY PERSON CAN DEPOSIT ANY AMOUNT OF MONEY IN ITS B ANK ACCOUNT. THE APPELLANT IS STILL LIABLE TO EXPLAIN C ASH DEPOSIT U/S 68 OR INVESTMENT MADE U/S 69 OF THE ACT. IN VIE W OF THE ABOVE, THIS GROUND OF APPEAL IS REJECTED. 3.4.1 IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE APPELLANT HAS SHOWN COMMISSION INCOME AT R S. 2,92,150/- IN ITS COMPUTATION OF INCOME. IT WAS SUB MITTED BY THE APPELLANT THAT THE SAME HAS ALREADY BEEN SHOWN IN ITS PROFIT AND LOSS ACCOUNT. HOWEVER, THE APPELLANT HAS NOT SHOWN HOW THE EARNING OF COMMISSION INCOME IS RELAT ED TO ITS RETAIL TRADE. HENCE, THIS GROUND OF APPEAL IS R EJECTED. ITA NO. 550/JP/2016 SHRI ATUL MALOO VS. ITO WARD- 3(2), JAIPUR . 3 2.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE ISSUES IN QUESTION MAY BE RESTORED TO THE FILE OF THE AO TO BE DECIDED AFRESH AS THE ASSESSEE COULD NOT PRODUCE THE RELEVA NT RECORDS/ DETAILS BEFORE THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF SERIOUS SICKNESS (I.E. NEUROSURGERY CASE) OF HIS S ON MASTER ARNAV MALOO. THE LD. AR OF THE ASSESSEE FURNISHED THE FOLLOWING MEDICAL CERTIFICATES / PAPERS FROM THE HOSPITALS WHERE HIS SON MASTER ARNA V MALOO WAS GIVEN TREATMENT/ HOSPITALIZED. 1. PARAS HOSPITAL, GURGAON CERTIFICATE DATED 14- 07-2015 2. SIR GANGA RAM HOSPITAL, NEW DELHI CERTIFICATE D ATED 20-07-2015 3. S.M.S. HOSPITAL, JAIPUR CERTIFICATE DATED 21-0 7-2015 4. TATA MEMORIA HOSPITAL, MUMBAI CERTIFICATE DATED 03- 08-2015 5. GLOBAL HOSPITAL, MUMBAI CERTIFICATE DATED 04-0 8-2015 6. S.M.S. HOSPITAL, JAIPUR CERTIFICATE DATED 16-0 9-2016 (MRI BRAIN AND WHOLE SPINE WITH GD) 7. TATA MEMORIAL HOSPITAL CERTIFICATE DATED 01-06-2 016. 8. PANDIT DEEN DAYAL UPDDHYAY HOSPITAL, GANGORI BAZAR, JAIPUR CERTIFICATE DATED 15-09-2016 & 16-09- 2016 ITA NO. 550/JP/2016 SHRI ATUL MALOO VS. ITO WARD- 3(2), JAIPUR . 4 2.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORDS T HAT THE LD. CIT(A) HAD CONFIRMED THE FOLLOWING ADDITIONS MADE BY THE AO ON ACCOUNT OF NOT FILING THE PROPER DETAILS / DOCUMENTS BY THE ASSESS EE AT THE TIME OF ASSESSMENT PROCEEDINGS. 1. RS.14.10 LACS ON ACCOUNT OF CASH DEPOSIT 2. RS. 2,92,150/- ON ACCOUNT OF COMMISSION INCOME. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS OBSERVED THAT THE ASSESSEE WAS NOT IN A POSITION TO SUBSTANT IATE HIS CLAIM BEFORE THE AUTHORITIES BELOW BECAUSE OF SERIOUS ILLNESS OF HIS SON MASTER ARNAV MALOO. IN SUCH A SITUATION, IT WILL BE IN THE INTER EST OF EQUITY AND JUSTICE TO RESTORE THE ISSUES TO THE FILE OF THE AO TO DECIDE IT AFRESH BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE RELEVANT DOCUMENTS/ PAPERS CONCERNI NG THE GROUNDS OF APPEAL RAISED BEFORE THIS BENCH AND COOPERATE THE A O IN ASSESSMENT ITA NO. 550/JP/2016 SHRI ATUL MALOO VS. ITO WARD- 3(2), JAIPUR . 5 PROCEEDINGS. THUS THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 06 /12/2 016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06 /12/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ATUL MALOO, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3(2), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 550/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR